Sabriego v. White

• Decision Date: 31 January 1868
• Citation: 30 Tex. 576
• Parties: MANUEL SABRIEGO ET UX. v. SAMUEL A. WHITE.
• Court: Texas Supreme Court

30 Tex. 576

MANUEL SABRIEGO ET UX.

v.SAMUEL A. WHITE.

Supreme Court of Texas.

January, 1868.

The division of an empire works no forfeiture of the rights of property previously acquired.

The XIXth article of the plan of the provisional government reads as follows: “All persons who leave the country in its present crisis, with a view to avoid a participation in its present struggle, without permission from the alcalde or judge of their municipality, shall forfeit all or any lands they may hold, or may have a claim to, for the benefit of this government: Provided, nevertheless, That widows and minors are not included in this provision.” Pas. Dig. p. 28, note 128. This was intended to retain the able-bodied men, or the effective force of the country; hence the proviso in favor of widows and minors.

The 8th section of the general provisions of the constitution of the republic reads as follows: “All persons who shall leave the country for the purpose of evading a participation in the present struggle, or shall refuse to participate in it, or shall give aid or assistance to the present enemy, shall forfeit all rights of citizenship and such lands as they may hold in the republic.” Pas. Dig. p. 36, § 8, note 143. Parties who were resident in Texas at the date of the revolution, and left the republic in 1836 and 1837, and did not return until 1847 or 1848, did not become aliens, nor, until the forfeiture be ascertained by some proceeding authorized by law, is their civil status changed, or their rights of property divested.

A party who left Texas in 1835, and went to Mexico, and resided there until her death, in 1842, was not denationalized. She was a citizen of Mexico when she left, and she remained a citizen of Mexico, and the dismemberment of the empire worked no change of her right to land in Texas. The next paragraph seems to hold that she remained a citizen of Texas, and was not subject to the declaration of the 10th general provision, that “no alien shall hold land in Texas except by title emanating directly from the government of this republic.” Pas. Dig. p. 37, § 10, notes 145, 147; art. 43, note 237.

No length of absence from one's domicile, when the purpose is to return to it, operates a change of domicile.

The clause of the constitution of the republic which declared that no alien shall hold land, etc., is to be taken in connection with the next clause, which declares that, if any citizen shall die intestate, his children or heir shall inherit the estate, and aliens shall have a reasonable time to take possession of the same, in the manner to be hereafter pointed out by the law; and the act of 18th January, 1840, gives nine years to the alien to assert his rights. Pas. Dig. art. 44, note 238.

This act (art. 44) contemplated an inquest of office before the declaration of forfeiture could be made.

Whether B, who left Texas in 1835, and remained in Mexico until her death in 1842, was an alien Mexican, or remained a citizen of Texas, upon her death, her land in Texas was cast upon her daughter, who accompanied the mother to Mexico, remained there, and sued for the land as an alien and Mexican citizen.

The principle illustrated by the doctrine of forced heirship (Pas. Dig. art. 3868, note 897).

The 14th section of the act of the 28th of January, 1840, which was reenacted by the law of the 8th of March, 1848, to regulate descent and distribution, reads as follows: “In making title to land by descent, it shall be no bar to a party that any ancestor, through whom he derives his descent from the intestate, is or hath been an alien; and every alien to whom any land may be devised or may descend shall have nine years to become a citizen of the republic, and take possession of such land; or shall have nine years to sell the same, before it shall be declared to be forfeited, or before it shall escheat to the government.” Pas. Dig. art. 44, note 248. This shows that the common-law rule that an alien cannot cast descent upon an alien was wholly inapplicable to the republic of Texas; hence the court overruled the case of Sabriego v. McKinney, 18 How. 235.

Before the expiration of the nine years, Texas had been annexed to the United States, and we must look to the constitution and laws of the state for the rule governing the rights of aliens.

The case of Jones v. McMasters, 20 How., approved.

The 20th section of the VIIth article of the constitution of 1845 reads as follows: “The rights of property and of action, which have been acquired under the constitution and laws of the republic of Texas, shall not be divested.” Pas. Dig. p. 65, § 20, note 197. As no law of escheats has been enacted, no defense can be set up against the claim of an alien, upon the mere ground of alienage.

ERROR from Goliad. The case was tried before Hon. THOMAS J. DEVINE, one of the district judges. The facts upon which the case turned are stated in the opinion of the court.

No briefs have been furnished to the reporter.

LINDSAY, J.

This was an action to try title to one league and a half of land, granted in the municipality of Goliad, on the 6th day of August, 1833, to Gertrudis Barrera. The plaintiffs in error brought the suit against the defendant in error in the district court. They obtained a verdict and judgment in that court for one-half the land in controversy; but, believing themselves entitled to the whole, they have brought the case here by writ of error for the revision of this court.

The facts upon which the plaintiffs based their claim to the land are, substantially, about these: A concession was made by the executive of the state of Coahuila and Texas to Gertrudis Barrera for three leagues of land in sale, under the 13th article of the colonization law of said state, on the 28th day of April, 1832, and one league gratis, which was conceded in consideration of a previous settlement thereon, and the establishment of a ranch at the place, when conceded, by Francisco Garcia, the husband of Gertrudis Barrera. They held, also, the grant from the state of Coahuila and Texas to Gertrudis Barrera, for one league and a half of land in Goliad county, dated the 6th of August, 1833, which was founded on the concession of the 28th of April, 1832.

The plaintiffs in error were legally married at Goliad, in 1835, where they both then resided. The wife, Pilar, was the daughter and only child of Francisco Garcia and Gertrudis Barrera, to whom the land was granted.

Francisco Garcia died in the year 1834, at Goliad, where he and his wife, Barrera, then resided. After the death of Francisco Garcia, and after the commencement of the Texan revolution, but before the declaration of its independence, the mother, Gertrudis Barrera, the daughter, Pilar, and the son-in-law, Manuel Sabriego, moved to Matamoros, in Mexico, where the mother, Gertrudis Barrera, died in 1842, and the daughter and son-in-law have continued to reside in Mexico, ever since their removal from Texas, with the mother. The plaintiffs proved the identity of the one league and a half surveyed for and granted to Gertrudis Barrera by the state of Coahuila and Texas, in the county of Goliad. They also proved that the defendant had actual notice of the location and survey of Gertrudis Barrera as early as the spring of 1838; that the witness himself, who had been a chain-carrier of the survey, pointed out to the defendant the position of the northwest corner, where a post was planted; that the next day, when he again went to the place for the purpose of surveying north of this survey, he found the post had been taken up and removed; he hunted for it, found it, and restored it to its position, where it stood for years.

The defendant relied upon a survey made for White, on the 12th day of November, 1838, for twenty-four labors of land, interfering with plaintiffs' claim, upon which a patent issued by the state of Texas, on the 2d of April, 1852. He relied, also, upon the alienage of the plaintiffs and the forfeiture of their title, if any they had, by reason of their removal from Texas and their adherence to the Mexican government in the midst of or during the struggle of Texas for its independence.

Upon this state of facts, introduced before the jury, the court instructed them that if Gertrudis Barrera, the mother of the plaintiff, Pilar, died more than nine years before the commencement of this action, being an alien, and citizen and resident of Mexico, then the plaintiffs cannot recover more than one-half of the land sued for; and that the plaintiffs were entitled to recover one-half of the land in controversy, if the land had been granted to Gertrudis Barrera, the wife of Francisco Garcia, while they were man and wife, in 1833, and the plaintiff, Pilar, was their only child, and Francisco Garcia died in 1834, at Goliad, in Texas, before the commencement of the revolution.

The jury brought in a verdict for the plaintiffs for one-half of the land in controversy. A judgment was given in affirmance of the verdict, giving one-half the land, with costs of suit, to the plaintiffs.

Both parties moved for a new trial, but the motion of each was overruled; and each gave notice of appeal, but the appeal was not perfected by either; and the case is now brought up by writ of error before us, at the instance of plaintiffs, for revision.

The reasons assigned by the plaintiffs in error for a new trial, and which are the assignments of error for reversal in this court are: That the court below erred in instructing the jury that, if they believed from the evidence, that Gertrudis Barrera, the mother and ancestress of the plaintiff, Pilar, and the said Pilar, were citizens of Mexico, and that the mother died more than nine years before the commencement of the action, being an alien and citizen of Mexico, the plaintiffs could not recover more than one-half of the land sued for.

In the consideration of this case, upon the facts presented by the record, important questions arise and demand our...